Colburn v. Sessin

WILSON, J.

Appeal from judgment in favor of defendants after the sustaining of a demurrer to plaintiff’s complaint without leave to amend.

The action was brought by plaintiff, a licensed real estate broker, to recover a commission for the sale of real property made by defendants Sessin and Gutlin to defendants Winton. The facts alleged in the complaint are as follows: Defendants Sessin and Gutlin, owners of real property, entered into an oral agreement with plaintiff whereby his services were retained to obtain a purchaser ready, able and willing to purchase the property; the owners agreed to pay plaintiff 5 per cent of the sale price for his services in the event the property could be sold; the owners agreed that they would furnish plaintiff with a signed, written memorandum confirming the agreement; in reliance thereon he undertook to and did locate purchasers; he so informed the owners and submitted to them a proposed written memorandum of the broker’s commission agreement and requested its execution; they assured him they would execute and deliver it but requested him to introduce them to the prospective purchasers so that the proposed transaction might proceed in the interim; relying on such representations plaintiff introduced the proposed purchasers to the owners; the latter had no intention of fulfilling their promise and made it only with the intention of causing plaintiff to disclose the identity of the purchasers; the owners failed to execute the memorandum for the payment of the commission and thereafter sold the property to defendants Winton who were the purchasers produced by plaintiff.

Defendants demurred to the complaint generally and on the ground that the alleged contract is void and unenforceable by reason of subdivision 5 of section 1624 of the Civil Code. Demurrers were sustained without leave to amend and judgment was entered in favor of defendants.

[6]

An agreement authorizing or employing a broker to pur- • chase or sell real estate for compensation or commission is invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged or by his agent. (Civ. Code, §1624, subd. 5; Code Civ. Proc., § 1973, subd.

5; Blanchard

v.